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Are judges employees or volunteers? #WotCLawsuits

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04 May 2016 18:15 #226978 by wadenels
I don't disagree with the lawsuits claims, really. But this type of thing comes up pretty often. Step 1: Volunteer and sign up for something that you're interested in, knowing you won't get paid. Step 2: Do it for a while. Step 3: Decide you should get paid.

I don't get what happens between Steps 2 and 3. Why not just stop volunteering if you value your time that much?

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04 May 2016 19:04 #226984 by SuperflyPete

Ska_baron wrote: While not at attorney myself, I've worked 10 years in law firms and I find it hard to believe that WotC wouldnt have a clause somewhere in whatever judges sign (along with their training/tests) that protects WotC from this. But then again, some clients for the firms I've worked for try some crazy crap...

Also interesting, from some dude on BGG:

I work in a field where I deal with federal employment laws and regulations on a daily basis. I am not an attorney, but I am versed in laws, regs, precedent court decisions, etc. in my area of concern. So I have some level of expertise in this area. However, I am not a trial attorney, so don't take this as expert opinion or legal advice.

Part of determining the role of employer (versus contractor) relies on the control of the worker.

Using the definition of employer from www.duhaime.org/LegalDictionary/E/Employer.aspx , for example...

Employer Definition:
A person who is contractually bound to a worker - the employee - to give that worker money as a salary or wages, in exchange for ongoing work and for which the employer directs the work and exercises fundamental control over the work.

To be a judge for MtG, one has to pass a test, adhere to strict standards and behaviors (I imagine), and perform duties as prescribed by WotC. Thus WotC is directing the work and exercising control over the work of the judge, regardless of the venue. Thus it can be argued that WotC is acting as an employer of the judge. Precedent case law supports this notion.

Judges across all fields (ex. athletics, rec games, agricultural shows) are compensated for their work, most commonly for a fixed fee. Thus MtG should be compensated for their work. We have minimum wage laws that govern the minimum pay for any work. Thus MtG should be obligated to pay at least minimum wages as prescribed by law and regulation.

I believe the lawsuit here has merit, certainly enough to get to trial. It will be up to the attorneys to present their evidence and the judge to render a decision. I give the plaintiffs a fair shot of winning this.

Now, for the future of judges and demo teams... a win here for the plaintiffs will definitely have an impact. I know small local game production companies in my area use their own employees to demo their own product. They travel to conventions all across the country to do so. If small companies can do so, the bigger guys should do so. It is expensive? Yes. But big game companies should not have an unfair advantage in using "unpaid" (notwithstanding product compensation) demo folks to advertise for them.

If anyone has insight on the video game industry and how they do things, I'd be interested in reading about that.


It's like this - contracts aren't valid if they fly in the face of law. For instance, one could contract their children of 10 and 11 to work 16 hours a day at a sweat shop, but if the parents sued them (which would bring the situation before the courts) despite them being reprehensible scumbags, the employer (even 1099) would lose decisively because the contract is invalid under labor regs.

If they are being controlled and compensated, they are employees. The fact that there's a rigid structure in how they work and what their rulings must be per the game rules, they could make a compelling case that they are contractors at worst and employees at best.

The shit part that the plaintiffs aren't considering is if they win, they will have to pay taxes on the material and ancillary compensation. Wizards will send retroactive 1099s to all of them and fuck their taxes up.
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04 May 2016 19:27 #226986 by Colorcrayons
Which is just a double fuck you to the judges/envoys.

Instead of giving decent recompensation in product, now they could potentially force taxes be paid on product received.

I was only a level one MtG judge for wotc, an envoy for WizKids during pirates of the Spanish main until WizKids original demise, and an outrider for gw.
Gw used to be genuinely generous with compensation, ironically. That stopped by 2002.
WizKids were always kind of tightwads.
Wotc much the same.
Going to game conventions for any of these companies, and proselytizing their wares other times, is just basically stupid.

At least when you work for FFG and required to attend and work gencon, its as an employee. An overworked employee, but paid commensurately.

Their volunteers, I'm not so sure about.

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04 May 2016 20:33 #226989 by boothwah

Mad Dog wrote:

Erik Twice wrote: Aren't forum moderators also workers?


I demand French benefits!


You mean like your wife not having to shave? Or a license to sneer?

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04 May 2016 21:22 #226992 by Michael Barnes
How absurd is it that people judging a fantasy card game tournament are crying about unfair compensation. Talk about white whine.

It doesn't matter what the definition of an employee is or isn't. What matters is if these judges are informed up front in the paperwork or whatever whether they are or are not employees of WOTC/DCI. If there is an offer of work involved, W4s, contract agreements, language that clearly identifies the individual specifically as an employee of the company then there is a case. If not, these people are clearly volunteers in exactly the scenario Wade spelled out. "Wait...this is kind of like work...we should get paid!"

I have always assumed that any kind of work like this is volunteer in nature.

The truth of it is that some 25 year old dude probably got fired from his job at the local movie theater because a tournament ran over so he figured that he should be paid to be a judge.
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05 May 2016 09:23 #227010 by SuperflyPete

Michael Barnes wrote: Talk about white whine.

So, let me just verify the Fort rules: Misogyny bad, homosexual intolerance bad, but outright racism is fine?

It doesn't matter what the definition of an employee is or isn't. What matters is if these judges are informed up front in the paperwork or whatever whether they are or are not employees of WOTC/DCI. If there is an offer of work involved, W4s, contract agreements, language that clearly identifies the individual specifically as an employee of the company then there is a case. If not, these people are clearly volunteers in exactly the scenario Wade spelled out. "Wait...this is kind of like work...we should get paid!"

I have always assumed that any kind of work like this is volunteer in nature.

The truth of it is that some 25 year old dude probably got fired from his job at the local movie theater because a tournament ran over so he figured that he should be paid to be a judge.


First: a volunteer cannot be told how long he or she has to be a volunteer for. That's control.

Second: I could contract a hit man to take out Charlie's Kirby stalker, and if he was arrested, if the contract I wrote said "The undersigned accepts all responsibility for his actions and the contractor cannot be held liable for any crimes committed by the undersigned" the judge or magistrate will laugh his ass off while sentencing me to death. A contract that does not abide by local, state, or federal laws and regulations, or does not conform to UCC is invalid.

Third: If a Sioux protests the government's continual breach of the Treaty of Ft. Laramie; is that a red whine?
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05 May 2016 09:28 #227011 by SuperflyPete
It could be argued that freelance writers who are given specific instructions on what they can write, who they can write for, what they can say to publishers about their relationship with a board game distributor that they write for, and how they can present themselves to the public, irrespective of contract or lack thereof, are volunteers, even if they're paid. But because of the restrictions, pretty much any judge ever will call them employees.

Might want to think about the larger ramifications of the case.

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05 May 2016 09:47 - 05 May 2016 10:03 #227014 by Michael Barnes
Freelance writers are never considered employees. You are not eligible for any benefits, you have no contract guaranteeing work or compensation, and you are regarded as a vendor offering a service. You are voluntarily selling individual pieces of content with no contractual obligation on behalf of the buyer to accept it. You kind of exist somewhere between contractor and paid volunteer. So that is irrelevant. Unless you are a 1099 contractor.

Volunteers can be told what to do, where to do it and when to do it. Or they can choose to not show up. It is not a job, the consequences are that they lose whatever is offered as an incentive, any status, and possibly the ability to volunteer again. There can be rules and regulations.

I'm willing to bet that whatever paperwork there is to be a Magic judge includes multiple statements indicating that the applicant is NOT an employee of WOTC and that no such status or benefits such be expected. I know they pay some of their highest ranking Pro Tour judges, but they are actual employees of the company.
Last edit: 05 May 2016 10:03 by Michael Barnes.

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05 May 2016 09:52 - 05 May 2016 09:58 #227017 by Mr. White
I wish I could find it now, I think it was on that Black Diamond guy's blog - but I dunno, and it's sort of interestingly related, but I recall reading an issue where at some game store top level Magic players in the area were demanding compensation...just to show up and play at the tournaments. Yeah, something like they felt their participation validated the event. These guys were even up front about not buying product in the store nor generally playing there, but wanted incentives to show up and game. I hope I'm remembering this correctly. If so, it's incredulous.

Anyway, not totally off topic.
Last edit: 05 May 2016 09:58 by Mr. White.

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05 May 2016 10:19 #227021 by SuperflyPete
I reiterate, with respect, that if you sign a contract in direct opposition to the law, IT IS INVALID.

If a contract you sign states that you are not eligible for employment because you're black, or above the age of 50, or a woman, that contract is invalid, for instance, unless the contractor can prove that your age or shade or gender makes you incapable of doing the work.

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05 May 2016 10:23 #227022 by Black Barney
Contracts are largely done to discourage lawsuits. It doesn't actually work to prevent them in several cases.

One of the local ski hills has signs all over it saying that we're skiing at our risk and that the hill is not responsible for any injuries. It's not actually true according to our laws up here, the hill is totally responsible for whatever happens on their property, including and especially injuries.

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05 May 2016 10:45 #227023 by Varys
As a former judge for Magic, Vs. and WoW TCG, I can sort of understand where these judges are coming from, and I guess since it's a class action suit, I'm potentially due for whatever these guys may win. I will have to say that I did consider judging to be a volunteer type of exercise. I did put in ridiculous hours and had to do some pretty crappy things like picking up trash and lifting heavy objects like tables and boxes of never released foil Power 9s ;P All kidding aside, if they do win, it will have repercussions for all games and all levels of judging...not just premium WotC-run events. Since I don't judge anymore nor do I play anymore, I'm all for sticking it to the man on this one.

Also, I'll mention that I think these guys were some of the judges who were suspended by WotC for that set leak a couple of sets ago. While I feel that several of those suspensions were uncalled for, it's impossible for WotC to tell who was complicit in the set leaks or not. Ultimately, several of those suspensions were reduced to a very short period of time. Still, I wonder if they're just vindictively responding to those suspensions with this lawsuit.
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05 May 2016 10:57 - 05 May 2016 10:58 #227026 by stoic
I hate to weigh in on legal issues on the Internet, but, please know that a major issue here in this case isn't whether these MtG referees/judges are volunteering their time toward a hobby in exchange for a few decks of cards, free pizza, and a t-shirt. The narrow issue here is the legal status of the entity for which these folks are offering their time. In a nutshell, per the 2015 Browning-Ferris Industries, Inc. NLRB ruling if the object of the volunteer work is for a non-profit entity, then volunteering is generally ok, but, on the other hand, if the entity is a for-profit concern, then the laws of peonage and other labor laws might enter the picture. This is what the court will decide. Why? Our society has agreed to a social contract regarding how workers should be treated and how they should be paid. The law simply doesn't like it when for-profit entities accrue profits from the unpaid or underpaid labor of others--the laws are intended to prevent exploitation. This is why we have minimum-wage and other protective labor laws.

I think people are outraged because this type of litigation endangers a beloved hobby, but, it's just black letter labor law that's applied daily. I need an explanation here though because I don't understand what these MtG referees and judges do. Do these allegedly unpaid/underpaid, unfairly treated volunteer referees/judges enforce tournament rules that essentially promote or encourage tournament playing MtG players to purchase new decks of MtG cards every two-years because of rule changes? Does this mean that these MtG judges/referees enforce rules that encourage sales of MtG cards for a for-profit corporation?
Last edit: 05 May 2016 10:58 by stoic.
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05 May 2016 11:10 - 05 May 2016 11:15 #227028 by Mr. White
My only experience with CCG tourney judges are through a store where they are employees. I think it's more a function of their job. As in, they may usually work the cash register, but when the store wants to run a monthly Pokemon tourney they tap the same two people to do it. I figure they are simply the Pokemon experts on staff. So, employees of the store basically just running a function during their normal work hours.

I don't know anything about any outside, volunteer judges coming in and running things. Where does that happen at? Conventions?

I do have plenty of experience of people volunteering their time to run BB tournaments, but there the game has been 'dead' and they are simply doing it for the love of the game and are totally removed from any parent company. Much like a GM putting in the hours to organize an RPG. In these cases, I tend to throw them extra money because for the most part they struggle to even break even once prizes, location fees, etc are all factored in.
Last edit: 05 May 2016 11:15 by Mr. White.

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05 May 2016 11:28 #227029 by Jackwraith

SuperflyTNT wrote: I reiterate, with respect, that if you sign a contract in direct opposition to the law, IT IS INVALID.

If a contract you sign states that you are not eligible for employment because you're black, or above the age of 50, or a woman, that contract is invalid, for instance, unless the contractor can prove that your age or shade or gender makes you incapable of doing the work.


This is the key statement here. It doesn't matter if they signed a document that contravenes the law. If the law determines that they're employees, whatever contract they signed is irrelevant. They're employees and entitled to the protections inherent to that status. And, as Stoic notes, there is precedent for courts looking especially askew at for-profit companies using volunteers for their endeavors. It's certainly a bad spot for WotC to be in, but given the detailed strictures of the judging program, it's certainly their colossal fuck-up that one of their lawyers didn't raise a hand at some point and say: "Yeah, this isn't really a volunteer situation, anymore." Or perhaps they did and got overruled, meaning WotC was fully cognizant of breaking the law for many years now.

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